The U.S. Supreme Court’s decision to not review last summer’s D.C. Circuit Court of Appeals ruling that invalidated the Trump EPA’s solution for summertime E15 was disappointing but instructive. While the high court’s disinterest closes the door on the ultimate legal solution for uninterrupted E15 access, it also clarifies our remaining options: either the EPA or Congress must act.

As we report in “The Quest to Stop E15’s Summertime Shutdown,” our industry’s trade groups—Growth Energy, the Renewable Fuels Association and the American Coalition for Ethanol—all agree that a legislative fix to E15’s summer prohibition—at least in areas of the country using conventional gasoline—would be ideal. Bipartisan legislation introduced in both houses of Congress last year could, if revived, deliver a “blanket solution” for year-round E15. But as the story explains, resurrecting and advancing such a bill in the current Congress would be not only slow and difficult, but risky.

Both E10 and E15, when made with conventional gasoline, have Reid vapor pressures (RVP) that can narrowly exceed federal limits (by less than 1-pound psi) in warm weather months. The 1990 Clean Air Act granted E10 a 1-pound waiver from the government’s RVP cap (i.e., “RVP relief”) but the historic environmental bill did not give the same allowance to E15, which wasn’t sold at the time. Two years ago, with retail interest in E15 growing, everything changed when the EPA decided on its own that both E10 and E15 were deserving of RVP relief. Big Oil complained. The courts listened. And the agency’s unilateral E15 solution under Trump was deemed an overreach and invalidated last summer. Now, with E15 banned from summertime use in many areas of the country from June 1 through September 15, the industry has only a few months to figure something out.

Admitting that a legislative fix is a heavy lift in the near-term, E15 proponents are leaning toward more plausible regulatory solutions. But whereas a legislative fix would extend the 1-pound RVP waiver to E15, the regulatory proposals being floated would get rid of the waiver altogether.   

The first push, already in motion, uses an obscure provision within the very law that created E15’s summertime problem—the Clean Air Act—to authorize the EPA to let states opt out of RVP relief completely. This would require a transition to lower-volatility reformulated gasoline (RFG) that, even when blended with 10% or 15% ethanol in warm weather, remains below the federal RVP ceiling. The governors of eight states have asked the agency to help them understand how to proceed with an opt out. At press time, the EPA had not responded.

Alternatively, the trade groups say, the EPA could act on its own, proactively issuing a rulemaking calling for the required use of reduced volatility blendstock in areas of the country where E15 is prohibited in the summer. An all-encompassing action that throws out the 1-pound waiver in favor of low-volatility RFG would also take time—and probably face opposition—but could be the most plausible coast-to-coast fix for summertime E15. 

With spring on the way, our trade associations know the clock is ticking. 


Author: Tom Bryan
President and Editor